A statement is defamatory when such charges would tend to lower the subject in the estimation of the community, to excite derogatory opinions against him, and to hold him up to contempt. PETA, 111 Nev. at 619, 895 P.2d at 1272. Moreover, the first element of defamation provides for a false and defamatory statement. According to the Supreme Court, the remarks must be proven false by “convincing clarity.” Garrison v. Louisiana, 379 U.S. 64, 74 (1964). Applying this “convincing clarity” standard has been somewhat circumvented due to the consequences of this holding not being fully developed. Nevada Ind. Broad. Corp., 99 Nev. at 412-13, 664 P.2d at 343. No standard of proof was discussed amidst the “convincing clarity” decision. Id. “Practically speaking, it may be impossible to apply a higher standard to ‘actual malice’ than to the issue of falsity.” Id. Generally, whether an alleged defamatory statement is false is a question for the jury. Id. (citing Restatement (Second) of Torts § 617 (1977)). Although a claim for defamation will not succeed if the defamatory statement is not false, minor inaccuracies generally do not amount to falsity for the purposes of defamation. Pegasus, 118 Nev. at 715, 57 P.3d at 88.

In addition to the statement being false and defamatory, it too must tend or be reasonably calculated to injure the victim’s reputation. Bongiovi v. Sullivan, 122 Nev. 556, 138 P.3d 433, 448 (2006). Therefore, to be actionable, the matter alleged to be defamatory must tend to lower the plaintiff in the opinion of respectable members of the community. 50 Am. Jur.2d, Libel and Slander § 1.

It is well established that statements are libelous only if they are presented as fact rather than opinion, and only if the facts asserted are false. SeeWellman v. Fox, 108 Nev. 83, 87, 825 P.2d 208, 210 (1992). Statements of opinion cannot be defamatory because “there is no such thing as a false idea. PETA, 111 Nev. at 625, 895 P.2d at 1275 (citations omitted). Specifically, the Nevada Constitution provides that, “[e]very citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.” Nev. Constr. art. 1 § 9. That is, free speech must be given the greatest possible scope and have the least possible restrictions imposed upon it, for it is basic to representative democracy. Culinary Workers Union v. Eight Judicial Dist. Court, 66 Nev. 166, 173, 207 P.2d 990, 994 (1994). Consequently, a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection. PETA, 111 Nev. at 626, 895 P.2d at 1276.

Illustrating this constitutional protection, evaluative opinions convey the publisher’s judgment as to the quality of another’s behavior, and, as such, are not statements of fact. Id. at 624, 1275. In other words, an evaluative opinion involves a value judgment based on true information disclosed to or known by the public. Id. As a result, virtually all “evaluative only opinions” will not be actionable since they are by definition based on disclosed facts. Id. at 624, 1275.

However, the rule for making the distinction is more easily stated than applied: whether a reasonable person would be likely to understand the remark as an expression of the source’s opinion or as a statement of existing fact. Nevada Indep. Broad. Corp. v. Allen, 99 Nev. 404, 410, 664 P.2d 337, 342 (1983). If the statement is ambiguous or a “mixed type,” meaning “an opinion, which gives rise to the inference that the source has based the opinion on underlying, undisclosed defamatory facts,” then the question of whether it is a fact or evaluative opinion goes to the jury. Lubin, 117 Nev. at 113, 17 P.3d at 426 (quoting Nevada Indep. Broad., 99 Nev. at 411, 664 P.2d at 342). Moreover, the courts must examine the context in which the statements were made. SeePosadas, 109 Nev. at 453, 851 P.2d at 438. Expressions of opinion may suggest that the speaker knows certain facts to be true or may imply that facts exist which will be sufficient to render the message defamatory if false. SeeMilkovich v. Lorain Journal Co., 497 U.S. 1, 13, 110 S. Ct. 2695, 2703, 111 L.Ed.2d 1 (1990).

The burden of proving the statement false is on the plaintiff and that the standard the plaintiff faces is clear and convincing evidence. 22 AMJUR POF 3d 305

A statement is not defamatory if it is absolutely true, or substantially true. SeeMark v. Seattle Times, 96 Wash.2d 473, 635 P.2d 1081, 1092 (1981). The doctrine of substantial truth provides that minor inaccuracies do not amount to falsity unless the inaccuracies “would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Specifically, the court must determine whether the gist of the story, or the portion of the story that carries the “sting” of the article, is true. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S. Ct. 2419, 115 L.Ed.2d 447 (1991).

Ordinarily, the question of whether a statement is defamatory is one of law. However, where a statement is susceptible of multiple interpretations, one of which is defamatory, the resolution of this ambiguity is left to the finder of fact. SeePosadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 441-42 (1993).

The Nevada Supreme Court has held that a statement is not defamatory if it is an exaggeration or generalization that could be interpreted by a reasonable person as “mere rhetorical hyperbole.” Wellman v. Fox, 108 Nev. 83, 88, 825 P.2d 208, 211 (1992).

In determining whether words charged are libelous per se, they are to be taken in their plain and natural import according to the ideas they convey to those to whom they are addressed; reference being had not only to the words themselves but also to the circumstances under which they were used. SeeTalbot v. Mack, 41 Nev. 245, 262, 169 P. 25, 29 (1917).

A statement that is capable of defamatory construction is not actionable if the communication is privileged. SeeLubin v. Kunin, 117 Nev. 107, 114, 17 P.3d 422, 427 (2001).

Privileges are defenses to a defamation claim and, therefore, the defendant has the initial burden of properly alleging the privilege and then of proving the allegations at trial. SeeSimpson v. Mars Inc., 113 Nev. 188, 191, 929 P.2d 966, 968 (1997) (recognizing that the privileges raised were “defenses, not part of the prima facie case”); see generally Restatement (Second) Torts: Defenses to Actions for Defamation Ch. 25 and Burden of Proof § 613 (1977).

A conditional or qualified privilege applies when a “defamatory statement is made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or duty, if it is made to a person with a corresponding right or duty.” SeeCircus Circus Hotels, Inc., 99 Nev. 56, 62, 657 P.2d 101, 105 (1983). Whether a particular communication is conditionally privileged by, being published on a privileged occasion is a question of law for the court; the burden then shifts to the plaintiff to prove to the jury’s satisfaction that the defendant abused the privilege by publishing the communication with malice in fact. Id. However, the issue only goes to the jury if there is sufficient evidence for the jury to reasonably infer that the publication was actually made with malice in fact. Id.

For example, a background investigation of an employee is subject to conditional privilege, and any defamatory statements therein are not actionable unless the privilege is abused by publishing the statements with malice. Bank of Am. Nevada v. Bourdeau, 115 Nev. 263, 267, 982 P.2d 474, 476 (1999). In Bourdeau, a branch manager was asked to resign after an internal review of the bank revealed forty-seven violations of bank policies, including six that were repeat violations, and three, which exposed the bank to possible civil and criminal prosecution. Id. at 264, 475. Shortly after, the branch manager assembled a group of investors to start a new bank where he was to be the chief executive officer and president of the new bank. Id. However, a FDIC investigator filed a report after speaking to the several of the branch manager’s former employees recommending that he not be approved for the new bank. Id. The report contained damaging information concerning his lending ability and the reasons why he was forced to leave his former job. Id. The Nevada Supreme Court held that the trial judge erred by not instructing the jury that the statements made to the bank examiner were conditionally privileged as a matter of law. Id. at 267, 476. Specifically, the bank had an interest and duty to cooperate with the examiner to ensure that officers of a new bank are qualified and experienced. Id. The same interest applies to the agencies that by law are required (the FDIC) to investigate proposed officers of a new bank. Id. Consequently, the Court remanded the case for a new trial provided that conditionally privileged applied as a matter of law unless the privilege was abused by bad faith, malice with spite, ill will, or some other wrongful motivation, and without belief in the statement’s probable truth. Id. (citations omitted).

Published communications or statements made in the course of judicial proceedings are protected by absolute privilege as long as they have some relation to the subject matter of the proceeding. SeeCircus Circus Hotels, Inc. v. Witherspoon, 99 Nev. 56, 60, 657 P.2d 101 (1983)

There are two types of damages for defamation: actual (which the law presumes to be the natural, proximate, and necessary result of the publication) and special damages (which must be proven because are not necessary or inevitable). To prevail on a defamation claim, a party must show publication of a false statement of fact that causes damage. K-Mart Corp. v. Washington, 109 Nev. 1180, 1192, 866 P.2d 274, 282 (1993).

Even if the statements were defamatory, a plaintiff must also show special damage as a part of a prima facie case of ordinary slander. SeeBranda v. Sanford, 97 Nev. 643, 637 P.2d 1223 (1981).

If the defamation tends to injure the plaintiff in his or her business or profession, it is deemed defamation per se, and damages will be presumed. Chowdhry v. NLVH, Inc., 109 Nev. 478, 483, 851 P.2d 459,462 (1993); see alsoNevada Ind. Broad. v. Allen, 99 Nev. 404, 409, 664 P.2d 337, 341 (1983).

Publication is the communication of the defamatory matter to some third person or persons, other than the person claiming to have been defamed. Simpson v. Mars Inc., 113 Nev. 188, 191, 929 P.2d 966, 967 (1997). If a defamatory statement is made to a person who knows that the statement is untrue, then a publication has not occurred. Fikes v. Furst, 61 P.3d 855 (NM 2003) cert. granted, 61 P.3d 835 (NM 2003). A person publishing defamatory matters, whether or not he is the author, may be held responsible for any injury caused by it, and so may anyone who republishes it. Heller v. Bianco, 244 P.2d 757 (Cal. 1952). However, even if numerous copies of a publication are released at a given time, under the “single publication rule,” it is held that only a single cause of action arises against the publisher, though the number of copies released may affect the extent of damages. 50 Am. Jur.2d, Libel and Slander § 153; see alsoMcGuiness v. Motor Trend Magazine, 180 Cal. Rptr. 784 (1982). However, not all jurisdictions follow this rule, and in such jurisdictions multiple causes of action may arise where copies of a publication are distributed. The single-publication rule is more consistent with modern practices of mass production and widespread distribution of printed information than the multiple publication rule. Churchill v. State, 876 A.2d 311 (NJ 2005). Also, the single-publication rule allows ease of management whereby all the damages suffered by a plaintiff are consolidated in a single case, thereby preventing potential harassment of defendants through a multiplicity of suits. 50 Am. Jur. 2d Libel and Slander § 245 (citing Restatement (Second) of Torts § 577A(2)).

It is not necessary that the plaintiff be specifically named in an alleged defamatory publication for such publication to be actionable. Peck v. Tribune Co., 214 U.S. 185 (1909). However, the defamatory matter must be understood to have reference to an identifiable person, otherwise there would be no damage to reputation. It is not necessary that the whole world understand the libel; it is sufficient that those who knew the plaintiff can make out that he is the person meant. Golden N. Airways v. Tanana Publ’g Co., 218 F.2d 612, 622 (9th Cir. 1955).

Both written and oral statements may constitute defamation. NRS 200.510 defines libel, although it is criminal libel, the definition is applicable for either criminal or civil: “A libel is a malicious defamation, expressed by printing, writing, signs, pictures or the like, tending … to impeach the honesty, integrity, virtue, or reputation, or to publish the natural defects of a living person … and thereby to expose them to public hatred, contempt or ridicule.” Phillips v. State, 121 Nev. 591, 119 P.3d 711, 716 -17 (2005). Thus, a writing that tends to expose a person, or in some circumstances a corporation, to contempt, ridicule, aversion, or disgrace or to induce in the minds of right-thinking persons an evil opinion of him and so cause others to shun or avoid him, is said to be libelous. Time, Inc. v. Hill, 385 U.S. 374 (1967).

Where the definition of what is libelous per se goes far beyond the specifics of a charge of crime, or of unchastity in a woman, into the more nebulous area of what exposes a person to hatred, contempt ridicule, or obloquy, or deprives him of public confidence or social intercourse, the matter of what constitutes libel per se becomes, in many instances, a question of fact for the jury. Maison de France, Ltd. V. Mais OuiA, Inc., 108 P.3d 787 (Wash. 2005).

Slander, on the other hand, is based on a false oral statement. Bongiovi, 122 Nev. 556, 138 P.3d at 448. At common law, there were some statements that, if spoken, were automatically defamation. Modernly, this is slander per se, to constitute which the statement must fall into one of four categories: “(1) that the plaintiff committed a crime; (2) that the plaintiff has contracted a loathsome disease; (3) that a woman is unchaste; or, (4) the allegation must be one which would tend to injure the plaintiff in his or her trade, business, profession or office.” Nevada Ind. Broad. Corp., 99 Nev. at 409, 664 P.2d at 341 (citing Branda v. Sanford, 97 Nev. 643, 637 P.2d 1223 (1981)). Additionally, the defamatory comments must imply a “habitual course of similar conduct, or the want of the qualities or skill that the public is reasonably entitled to expect.” See Restatement (Second) of Torts § 573 cmt. d (1977).

Defamatory communications posted on the Internet were characterized as “libel,” which historically did not require proof of special damages, rather than “slander,” which did require such proof, even though California statute defined slander as “by radio or any mechanical or other means,” since slander encompasses only means of auditory communications, and Internet postings are written, albeit electronically communicated. West’s Ann. Cal. Civ. Code §§ 45, 46; Varian Medical Systems, Inc. v. Delfino, 6 Cal. Rptr.3d 325 (2003), as modified on denial of reh’g and review granted and opinion superseded, 85 P.3d 444 (Cal. 2004).

For public figures to succeed on a defamation claim, they must prove “actual malice” in addition to the existing elements. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964), see alsoCurtis Publ’g Co. v. Butts, 388 U.S. 130 (1967). Actual malice means a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., cf. NRS 41.332 (which defines “actual malice” as “that state of mind arising from hatred or ill will toward the plaintiff and does not include that state of mind occasioned by a good faith belief in the truth of the publication or broadcast”). The jury must find actual malice based on “clear and convincing evidence,” the test to determine which is subjective. Id. The test focuses on “what the defendant believed and intended to convey, not what a reasonable person would have understood the message to be.” Nevada Ind. Broad. Corp., 99 Nev. at 415, 664 P.2d at 344 (citing R. Sack., Libel, Slander, and Related Problems 212-13 (1980)).

Where private figures allege defamatory statements made in regards to matters of public concern, they must prove negligence to recover actual damages. Gertz v. Robert Welch, Inc., 418 U.S. 323, 346-49 (1974).

Affirmative defenses to a defamation claim include: Answering Defendant enjoys an absolute privilege; Answering Defendant made no statements about Plaintiff; Answering Defendant’s statements, if any, were opinion; Plaintiff consented to Answering Defendant’s statements, if any; Answering Defendant’s statements, if any, were true; Answering Defendant’s statements, if any, were made by way of fair comment; t he claims of Plaintiff are barred as a result of the “single instance” rule; Answering Defendant’s statements, if any, were innocently construed; and Answering Defendant’ s statements, if any, were made in jest.

“A statement that is capable of defamatory construction is not actionable if the communication is privileged.” Lubin, 117 Nev. at 114, 17 P.3d at 427. Privileges act as defenses to defamation claims, therefore the “defendant has the initial burden of properly alleging the privilege and then of proving the allegations at trial.” Id. (citing Simpson v. Mars Inc., 113 Nev. 188, 191, 929 P.2d 966, 968 (1997) (recognizing that the privileges raised were “defenses, not part of the prima facie case”), Restatement (Second) of Torts: Defenses to Actions for Defamation Ch. 25 and Burden of Proof § 613 (1977)). The fair comment doctrine developed to “protect statements of opinion on newsworthy material,” however the First Amendment protects opinions, therefore this doctrine is no longer necessary. Id. at 413, 343. Another privilege was similarly disposed of by the First Amendment application to opinion statements, that being the conditional privilege. Id. The conditional privilege “protected statements made in the public interest.” Id. The caveat to which was the abuse of this privilege, which resulted in the “uttering of statements either with reckless disregard for their truth or with knowledge of their falsity.” Id. (citing Wright v. Haas, 586 P.2d 1093 (Ok. 1978)).

The fair report privilege protects statements referring to judicial proceedings that are “fair, accurate, and impartial.” Id. The theory behind this privilege is that “Nevada citizens have a right to know what transpires in public and official legal proceedings.” Id. (citing Sahara Gaming v. Culinary Workers, 115 Nev. 212, 215, 984 P.2d 164, 166 (1999)). The question of whether a statement was “fair, accurate, and impartial,” is one of law so long as “there is no dispute as to what occurred in the judicial proceeding reported upon or as to what was contained in the report.” Id. (quoting Dorsey v. National Enquirer, Inc., 973 F.2d 1431, 1435 (9th Cir. 1992). However, “a party may not don itself with the judge’s mantle, crack the gavel, and publish a verdict through its ‘fair report.’” Id. (citing Sahara Gaming, 115 Nev. at 215, 984 P.2d at 166).

The common interest privilege is conditional, it “exists where a defamatory statement is made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a right or a duty, if it is made to a person with a corresponding interest or duty.” Circus Circus Hotels v. Witherspoon, 99 Nev. 56, 62, 657 P.2d 101, 105 (1983). Whether this privilege applies is a question of law for the court. Id. If the privilege is found to exist, the defamation claim may still be presented to the jury if sufficient evidence exists “for the jury reasonably to infer that the publication was made with malice in fact.” Id.

General damages are those that are awarded for “loss of reputation, shame, mortification and hurt feelings.” Bongiovi, 122 Nev. 556, 138 P.3d at 448 (citing NRS 41.334; see also Nevada Ind. Broadcasting, 99 Nev. at 417, 664 P.2d at 346). General damages are presumed upon proof of the defamation alone because that proof establishes that there was an injury that damaged plaintiff’s reputation and “because of the impossibility of affixing an exact monetary amount for present and future injury to the plaintiff’s reputation, wounded feelings and humiliation, loss of business, and any consequential physical illness or pain.” Id. (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 373 n. 4 (1974) (White, J., dissenting)). Furthermore, the court will affirm an award of compensatory damages “unless the award is so excessive that it appears to have been given under the influence of passion or prejudice.” Id. (citing Guaranty Nat’l Ins. Co. v. Potter, 112 Nev. 199, 206, 912 P.2d 267, 272 (1996) (quoting NRCP 59(a)(6)).

Slander, as distinct from libel, ordinarily requires proof of “special damages,” meaning the loss of something having pecuniary value. Dan B. Dobbs, Dobbs Law of Remedies: Damages-Equity-Restitution § 7.2(2) (2d ed. 1993). The plaintiff is entitled to recover his pecuniary losses resulting proximately from the defamatory publication. For example, he is entitled to recover for earnings lost as a result of the defamation, provided the loss is reasonably proven. If no pecuniary or economic loss can be proved, then the plaintiff is entitled at least to nominal damages. Dan B. Dobbs, Dobbs Law of Remedies: Damages-Equity-Restitution § 7.2(2) (2d ed. 1993)

If the plaintiff cannot prove special damages, then the plaintiff must have plead Slander per se or else the Plaintiff has no case. Nevada Independent Broad. Corp. v. Allen, 99 Nev. 404, 409 (1983). Special damages are often difficult to establish.

The common law rule allowed recovery of presumed damages in many cases, and it was the central means by which the dignitary or personality right was traditionally vindicated. Both common law and constitutional law place limits on the recovery of presumed damages, but there remain cases in which presumed damages can be recovered, and even when they cannot, the plaintiff may be able to recover substantial sums for emotional harm resulting form the defamation.

In Nevada, presumed, general damages are permitted when there exists slander per se. Bongiovi v. Sullivan, 138 P.3d 433, 448 (Nev. 2006). Slander per se is a statement “which would tend to injure the plaintiff in his or her trade, business, profession or office.” Id. General damages are those that are awarded for “loss of reputation, shame, mortification and hurt feelings.” Id. General damages are presumed upon proof of the defamation alone because that proof establishes that there was an injury that damaged plaintiff’s reputation and “because of the impossibility of affixing an exact monetary amount for present and future injury to the plaintiff’s reputation, wounded feelings and humiliation, loss of business, and any consequential physical illness or pain.” Id. The Supreme Court will affirm an award for compensatory damages “unless the award is so excessive that it appears to have been given under the influence of passion or prejudice.” Id. In reviewing awards for excessiveness, the courts will look to how slanderous the remark was, whether it was believed, how widely it was disseminated, and plaintiff’s prominence and standing in the community. Id.

However, an award of presumed, general damages must still be supported by competent evidence, but not the necessarily the kind that assigns a dollar value to the injury. Id.

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About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on business law, business litigation, and acting as an Arbitrator and Mediator. Peers have named him an AV-Rated Lawyer, Best Lawyers, a Top 100 Super Lawyers in the Mountain States multiple years, and to the Legal Elite and Top Lawyers lists for many years. Mr. Young has been appointed a part time Judge, a Special Master to the Clark County, Nevada Business Court, as an arbitrator by the Nevada Supreme Court. He has been appointed as an arbitrator or mediator of well over 250 legal disputes from business disputes to personal injury matters. He has been named Best Lawyers for Arbitration. Mr. Young is a respected author of ten books, including A Litigator’s Guide to Federal Evidentiary Objections, A Litigator’s Guide to the Federal Rules of Evidence, and the Federal Court Civil Litigation Checklist.
Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

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